- (1.) SCIENTIFIC and Surgi cal Instrument Corporation of Calcutta despatched five microscopes through goods train under R/R No. D. 851862 dated 8-7-1959 for plaintiff-respondent to Meerut City Station. The Railway Re ceipt was endorsed in favour of the plaintiff. The five microscopes sent under one Railway Receipt were contained in three cases. Only two out of three cases were offered for delivery. The two cases are said to have arrived on 19-7-1959, Open delivery was, therefore, sought by the plaintiff and open delivery was given on. 13-8-1959. The third case contain ed two microscopes. Notices under Sec tion 80 Civil Procedure Code and Sec tion 77 of the Indian Railways Act were then given to General Manag_er, Nor thern Railway and Eastern Railway. A sum of Rs. 1560/- was claimed as price of two undelivered microscopes and a sum of Rs. 15/- was claimed as costs of notices. On the refusal of the Railway authorities, the suit out of which this appeal arises was filed by the plaintiff Paul Scientific and Chemical Corpora tion. Meerut who were the endorsee of the Railway Receipt on 12-10-1960.delivered goods ought to have been deli vered when the other two cases arrived at Meerut, Le. on 19-7-59 and the period of limitation would not commence from 13-8-59. when open delivery of the goods was given.
(2.) ARTICLE 30 of the Limitation Act is applicable in case compensation is claimed for losing or injuring the goods. Loss or injury must be to the Railway. It cannot be inferred from mere non-delivery that the goods were lost to the Railway. The burden lies on the Railway to prove the loss and also to prove when the loss and injury occurred. The trial court has consider ed the various circumstances and has rightly come to the conclusion that loss to the Railway was not proved. In paragraph 19 of the addi tional pleas it was stated: "That theft of the case In question was committed on Meerut station shed after unloading the consignment and the same was lost. There has been no wrongful withholding or conversion of it by the Railway authorities." If this was the definite case of the appellant, it was incumbent on them to file the loading and unloading book of Meerut city and to prove that the loss was not due to misconduct, negli gence or carelessness of the Railway administration. There was no occasion for the telegram (Ext. A-4) which shows that the undelivered parcel was wron gly loaded in some wagon from Meerut after it had reached Meerut. Not only the documents and evidence in posses sion of the appellant have been suppres sed but no effort has been made to show what replies were received to the telegram (Ext. A-4).
(3.) THE appellants have not only fail ed to prove that the goods were lost to the Railway, they have also failed to prove when the loss or injury occurred. The loss or injury could not be deemed to have occurred on the date the goods had reached the destination. i.e. on 19-7-59. because till 3-8-59 the case of the defendant had been that the goods were wrongly loaded in some wagon. The way the goods were handled at Meerut also does not go to show that Railway authorities were not negligent or care less. The finding on the question of the loss and destruction will also be material while considering the liability of the Railway under Section 75 of the Indian Railways Act. It is no doubt true that the liability of a bailee is sub ject to the Indian Railways Act but before protection can be sought under Section 75 of the Railways Act, loss to the Railway has to be proved. The con current finding of both the Courts is that the Railway has failed to prove that the disputed articles were lost. The lower appellate court has remarked that: "Taking all these factors into con sideration, I am of the opinion that the appellants have not shown that the dis puted articles have been lost and as such they are not entitled to claim any bene fit of Section 75 of the Railways Act." ;